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Supersonic Concorde legal saga not over yet.

Criminal proceedings into the deadly Concorde crash opened in early 2010, more than 10 years after the event. The resulting trial judgment issued on December 6, 2010, which laid criminal liability on one Continental Airlines mechanic and consequently on his employer, is doubtful. In fact, most of the defendants, as well as the prosecution, are appealing the ruling. What possibly went wrong – not in the crash itself – but in the court’s decision that has lead most of the parties on both sides of the case to file an appeal?

July 2000. An Air France Concorde supersonic airliner crashes north of Paris Charles de Gaulle airport shortly after take-off, killing all on board in addition to three persons on the ground, for a total of 113 casualties, not to mention post-traumatic stress disorders that witnesses at the scene are still experiencing.

Early 2010: a French court in Pontoise (north of Paris) initiates hearings in search of possible criminal liability involved in the major air crash.

December 6, 2010: The Pontoise court issues a judgment holding an American aircraft mechanic and his employer, Continental Airlines, directly responsible for the Concorde crash (one of Continental’s DC-10s dropped a metal strip on the runway just before Concorde’s take-off on the same runway.) Other defendants, such as Air France and the top manager in charge of the Concorde development program are acquitted because their actions in terms of continuing airworthiness are assessed as merely neglectful.

Air France, even though acquitted at trial, files an appeal requesting that it also be involved in the appeal process in order to clear its name after the damaging submissions made against it by Continental Airlines’ defense lawyer. This move is perceived as an attempt by Air France to restore its good reputation as a major airline. Meanwhile, the Air France Rio-to-Paris Airbus crash trial is coming up soon. A lot of questions will need to be answered there too. Air France is likely wanting this other trial to start from a clean slate, with no negative inferences about its reputation arising from the Concorde trial.

On December 21,we learn of a new twist in the Concorde case that could also defeat the trial judgment: the State prosecution in Pontoise is appealing the acquittal of other defendants in the case, namely the top manager in charge of the Concorde program and another similarly important executive in charge of Concorde’s continuing airworthiness.

This looks like a typical case of back to square one, more than 10 years after the sad loss of innocent lives in the crash.

Arguments against the judgment issued by the trial judge on December 6, 2010, may be summarily stated as follows:

1)causation and foreseeability of crash: there is no valid reason to pin direct liability on a Continental Airlines’ maintenance engineer for having improperly affixed a metal strip to the Continental DC-10 that took off ahead of Concorde, leading one of Concorde’s tires to blow apart with debris puncturing the underside of the wing, thereby causing the unforeseeable wing tank fire that brought Concorde down to a fiery and deadly crash two minutes after take-off;

2) willful blindness: Air France and Aérospatiale’s (now EADS) top Concorde program managers were acquitted too easily, when evidence points to possible willful blindness about known design weaknesses of Concorde and repeated take-off incidents due to blown tires prior to the crash. How can such a gorgeous looking airliner have any faults, one might ask. Think again. Several observers have wondered whether national prestige may have played a role in shielding Concorde from impartial scrutiny in technical issues plaguing the government-backed French supersonic transport program. If that were the case, can a French trial judge make such a finding even if it entails lifting the political veil?

3)knowingly exposing a third party to the risk of an accident resulting in known disastrous consequences («faute caractérisée»): according to legal commentators, the trial judge may have wrongly applied the recent statutory concept in French criminal law of «faute caractérisée», to the conduct of the Continental Airlines mechanic. This concept has no statutory definition; it is still in the process of being clarified by the French courts. And yet, it is a key concept upon which the Continental Airlines mechanic was held responsible for the crash.

Lesson learned again: major airline disasters cannot be fully dealt with through ordinary criminal proceedings. A special public inquiry would have been preferable, assuming French law provides for such a venue. Too many technical elements are at stake in major aviation accidents. The sheer magnitude of non-natural disasters of public interest stands as an obstacle for ordinary criminal courts to rule on them meaningfully, no matter how many technical experts take the stand in support of and against the charges, or even as amici curiae (neutral advisors to the court.) The drawback with public inquiries is that they are in many cases limited to making specific findings not involving liability at all and to drafting recommendations for air safety improvements. Public inquiries get a lot of public attention, which is in the public interest of course. However, once their recommendations are issued, they are not necessarily binding and it is up to the concerned public authorities to act and follow up on them. Because of such limitations, the actual outcome of public inquiries is often uncertain.

Let’s make it clear again: though it is virtually impossible to put a dollar figure on the loss of a human life, relatives of persons who died in or as a result of the Concorde crash have been adequately compensated for years ago. One can only hope that the same relatives have had some degree of closure, keeping in mind that ultimate closure and solace reside in knowing that such horrendous and preventable crashes never happen again.